CONTESTING THE VOTE: NEWS ANALYSIS

By LINDA GREENHOUSE

Published: December 11, 2000

Correction Appended

WASHINGTON, Dec. 10—
The moment when the chief justice of the United States steps before the inaugural crowds to administer the oath of office to the new president provides a highly symbolic scene of civic drama. No matter who the chief justice is or who won the race for president, the brief ceremony places a seal of order and regularity on the assumption of office. The head of the judicial branch and the new head of the executive branch stand at arm's length, with a Bible between them.

The reality, of course, is not always so simple: Chief Justice William H. Rehnquist last administered the oath to Bill Clinton, on Jan. 20, 1997, less than a week after presiding over the Supreme Court arguments on whether the Paula Jones sexual harassment suit against the president could go forward. ''Good luck,'' the chief justice said ambiguously to Mr. Clinton before resuming his seat.

If events unfold over the next few days as now appears likely, the scene at the next Inauguration Day less than six weeks from now will be nothing short of extraordinary. Chief Justice Rehnquist will be administering the oath of office to Gov. George W. Bush, whose election was all but assured by the Supreme Court's last-minute intervention this weekend to stop the Florida vote counting, as the eight other justices, bitterly divided four to four, look on from their front-row seats.

In a way, the court has as much at stake in the playing out of this national drama as either of the politicians whose fate five justices chose on Saturday to take into their hands. With the prospect of bringing an end to the bitter Florida election contest, the justices could not only play the crucial role in validating a winner, but also affect the future makeup of their own court, since the next president may have the chance to select new Supreme Court nominees.

Eight years ago, riven by debate over whether to uphold or overturn the constitutional right to abortion announced in Roe v. Wade, the court faced another moment of institutional crisis, albeit one that had to do with judicial philosophy rather than partisan ideology.

On that occasion, three justices, all appointed by Republican presidents, wrote an unusual joint opinion to explain why they had decided to adhere to a precedent that, as an original matter, they might well not have joined.

The court's only real power lies, the three justices wrote in Planned Parenthood v. Casey, ''in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the judiciary as fit to determine what the nation's law means and to declare what it demands.''

It was not always enough, they went on to say, for a decision to have a plausible legal basis. At times when the court is under great pressure, it has to do something more:

''The court must take care to speak and act in ways that allow people to accept its decisions on the terms the court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the court is obliged to make. Thus, the court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the nation.''

In concluding that overturning Roe v. Wade would cause ''profound and unnecessary damage to the court's legitimacy,'' the three justices concluded: ''The court's concern with legitimacy is not for the sake of the court but for the sake of the nation to which it is responsible.''

The opinion was signed by Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter.

Now with Justices O'Connor and Kennedy having voted on Saturday to stop the vote count, and with Justice Souter having voted in dissent, these onetime allies stand on opposite sides of a gaping divide.

And yet the reality that all three expressed so emphatically in 1992 has scarcely changed. In fact, the need for the court to explain its actions in terms the public can understand and accept -- even if not agree with -- is arguably greater than ever when the court can be perceived as stepping over the fine but nonetheless still distinct line that separates law and politics, immeasurably greater when a narrow majority can be seen as shaping an election that in turn will determine the nature of future Supreme Court appointments.

The majority on Saturday did not explain its decisions to hear the case -- the argument is set for Monday morning -- or to stop the counting. Justice Antonin Scalia issued a statement in his own name in response to the four dissenters' warning that preventing the counting of votes ''will inevitably cast a cloud on the legitimacy of the election.''

Justice Scalia said it was ''the counting of votes that are of questionable legality'' that was ''casting a cloud,'' not on the process in general but specifically on what Mr. Bush ''claims to be the legitimacy of his election.''

In other words, the majority's justification for the stay was that if the vote counting proceeded and had appeared to make Vice President Al Gore the winner by the time the court could decide the merits of Mr. Bush's appeal, the Bush position would be untenable as a political matter even if it prevailed as a matter of law.

That justification put the court in the position of seeming to protect Mr. Bush -- who has endorsed Justices Scalia and Clarence Thomas, named to the court by his father, as his ideal justices -- from whatever uncomfortable truth the uncounted ballots might reveal. The fact that the justices entered the stay at midafternoon Saturday, with the counting under way and most of it expected to conclude at 2 p.m. on Sunday, gave the court the appearance of racing to beat the clock before an unwelcome truth could come out.

In reprieving Mr. Bush from any political embarrassment the vote totals may hold, the majority may have only postponed the governor's problem. Under Florida's expansive ''sunshine'' law, the ballots will be publicly available for counting by news organizations and others.

Public response today to the court's action was intense, with much of the debate focused on the propriety of the stay. Terrance Sandalow, a law professor and a former dean of the University of Michigan Law School, said the ''balance of harms so unmistakably were on the side of Gore'' that the granting of the stay was ''incomprehensible.'' In an interview, Mr. Sandalow, a judicial conservative who said he opposed Roe v. Wade and supported the 1987 nomination of Robert H. Bork to the Supreme Court, called the stay ''an unmistakably partisan decision without any foundation in law.''

Charles Fried, a former solicitor general in the administration of President George Bush, who filed a brief today on behalf of the Florida legislative leadership, took an opposite view. It was the Florida Supreme Court's decision to order statewide recounts that was ''lawless,'' Mr. Fried said, while the stay ''prevents them from garnering the fruits of their lawless behavior.''

Beyond debate is the fact that the court has now placed itself in the midst of the political thicket where it has always most doubted its institutional competence and where as a personal matter the justices have always appeared least comfortable.

Eyebrows were raised last January when, for the first time in history, not a single justice showed up for the State of the Union address. Several were sick or had family obligations. Others were said to be weary of serving as props for the political pageantry of the event. It will be interesting to see if any justices appear next time, now that they are no longer props but players.

Correction: December 13, 2000, Wednesday A front-page news analysis article on Monday about political risks to the United States Supreme Court in the Florida voting case misstated the source of Justice Antonin Scalia's appointment. It was made by President Ronald Reagan, not President George Bush.